EEA Spouse immigration status query

[Waseem432000]

I am writing this on behalf of my sister and even though I plan to get proper legal advice, I thought it will be helpful to hear other people's perspectives.

My sister is a Pakistani national who is married to an Italian citizen of Pakistan origin and they have a three years old son. They have been living in the UK for the last 3 years and she got her five years visa when they moved to the UK. She has been subject to physical, verbal and financial abuse at the hands of her husband and his whole family ever since she got married but that has grown worse in the past few months. While my sister and nephew have been visiting Pakistan, her husband and in-laws traveled there and snatched my nephew's Italian passport and fled back to the UK leaving both of the stranded in Pakistan since last week and they missed their return flights as well. He has also threatened that he has sent an email to the British home office informing about their relationship breakup hence she won't be allowed to enter the UK even if she travels with my nephew.

We plan to apply for an urgent travel document for my nephew to travel back to the UK at the Italian embassy in Pakistan and also plan to apply for divorce and domestic violence against her husband. My question is that can the home office deny her entry merely for an email sent by her husband while no formal divorce has taken place? and can she continue staying in the UK as parent of an EEA citizen after their divorce is finalized?

[kamoe]

can the home office deny her entry merely for an email sent by her husband while no formal divorce has taken place?

First, If no divorce procedures have even started, then she's still legally married to him, and still benefits from the right to reside in the UK while her husband is exercising his treaty rights here, no matter the state of the relationship. See the section Marriage or civil partnership: non-official separation on page 11 of 29 of the Retained right of residence guidance here.

Second, the correct procedure to inform the Home Office of end of relationships is not to send an email who knows where but to send a very specific letter and filling very specific forms. If he did not do this, there is a possibility the Home Office has not taken any significant note on this. In any case, since they are still legally married, even if he followed the correct procedure, she still has her rights as legal wife.

and can she continue staying in the UK as parent of an EEA citizen after their divorce is finalized?

After the divorce is finalized there are a number of ways she can stay in the UK, but she needs to apply for an alternative visa or permit, since she'll be in a position where she will not have an automatic right of residence. This is when a professional immigration advisor / family solicitor will ideally come in, to advise her on the best route among a number that could apply (retained right of residence, permanent residence after domestic abuse, Zambrano carer of EEA child).

[Waseem432000]

Thank you so much for your help @kamoe. Their latest argument started a few days ago so I doubt he has started any legal process. I will book her flight and see if they allow her back in or not.

[Waseem432000]

can the home office deny her entry merely for an email sent by her husband while no formal divorce has taken place?

First, If no divorce procedures have even started, then she's still legally married to him, and still benefits from the right to reside in the UK while her husband is exercising his treaty rights here, no matter the state of the relationship. See the section Marriage or civil partnership: non-official separation on page 11 of 29 of the Retained right of residence guidance here.

Second, the correct procedure to inform the Home Office of end of relationships is not to send an email who knows where but to send a very specific letter and filling very specific forms. If he did not do this, there is a possibility the Home Office has not taken any significant note on this. In any case, since they are still legally married, even if he followed the correct procedure, she still has her rights as legal wife.

and can she continue staying in the UK as parent of an EEA citizen after their divorce is finalized?

After the divorce is finalized there are a number of ways she can stay in the UK, but she needs to apply for an alternative visa or permit, since she'll be in a position where she will not have an automatic right of residence. This is when a professional immigration advisor / family solicitor will ideally come in, to advise her on the best route among a number that could apply (retained right of residence, permanent residence after domestic abuse, Zambrano carer of EEA child).

Thanks again for your kind help. I booked my sister's flight and she was allowed to come back without any particular questions which confirm the fact her husband hasn't started any legal process or divorce and visa curtailment. She has been married for close to 6 years now as they married on skype in 2014 before the formal wedding ceremony in 2016 and they have been living in the UK for the last 3 years now which, in theory, makes her eligible for retained rights to stay. I will get professional advice for her case from some solicitor in coming days. Thanks for your help again

[kamoe]

[I booked my sister's flight and she was allowed to come back without any particular questions which confirm the fact her husband hasn't started any legal process or divorce and visa curtailment.

Just to clarify: your sister has a UK residence right as long as she remains the legal wife of the EEA national (and he remains a qualified person or has permanent residence). And she will be his legal wife all along until the marriage is officially dissolved via a decree absolute.

So even if he did start legal procedure for divorce, that alone would still not be enough to prevent your sister from accessing her residence rights, since he would have to wait until the process is completed. I used the sentence "if he has not even started" to further highlight how unlikely it was that your sister would have any trouble at all since "not even started" is even further away from the end of any legal process.

[Waseem432000]

[I booked my sister's flight and she was allowed to come back without any particular questions which confirm the fact her husband hasn't started any legal process or divorce and visa curtailment.

Just to clarify: your sister has a UK residence right as long as she remains the legal wife of the EEA national (and he remains a qualified person or has permanent residence). And she will be his legal wife all along until the marriage is officially dissolved via a decree absolute.

So even if he did start legal procedure for divorce, that alone would still not be enough to prevent your sister from accessing her residence rights, since he would have to wait until the process is completed. I used the sentence "if he has not even started" to further highlight how unlikely it was that your sister would have any trouble at all since "not even started" is even further away from the end of any legal process.

Thanks again for your reply. I can feel that they will have a rather long court trial considering both want to keep the child in case of divorce and they may even come up with some sort of arrangement, its comforting to know that she won't be blackmailed for her immigration status.